Does Divorce Revoke A Will?10 Sep 2021 | Jenny Walsh
Divorce and Wills
In the midst of a divorce or separation, it’s rare for couples to think about making or changing their wills but failure to do so could mean your ex-partner inheriting everything in the event of your death.
Experts at London law firm Osbornes Law warn that until your divorce is finalised, your assets may pass to your spouse, whether it is the case that you have not previously made a will (so the rules of intestacy apply) or you have previously made a will leaving them the entirety or a share of your estate. Ultimately this could see your assets ending up in the hands of his or her future partner or family, rather than those you wish to benefit.
Jenny Walsh, a partner specialising in wills and trusts, says, “Couples going through a divorce rarely think about making a new will, particularly if they are involved in a messy separation and are focused on pinning down the terms of their divorce settlement.
“The average divorce takes around a year, but if contested it can take a lot longer. Until your decree absolute is granted, you remain legally married and if anything happens to you before that, your ex will inherit, under the rules of intestacy or if they are mentioned in your current will. I have even worked on cases where separated couples have never finalised their divorce and years later their relatives find their anticipated inheritance has passed to a long-estranged ex instead.”
An ongoing divorce will not be taken into account when it comes to dividing the estate, with a couple still considered to be legally married. Once divorced, if your spouse is still written into your will, they will be treated as if they ‘predeceased’ you and those you wished to inherit in the event they died before you will be the beneficiaries instead.
Even if divorced, however, you should still ensure your will is updated, Jenny warns, “There are a number of things you may want to consider, particularly if you have children and there is the possibility your ex-partner may remarry in the future.
“As well as thinking about who you wish to inherit your estate, you will need to decide on a new executor – perhaps a sibling or a friend – potentially stipulate a different guardian for any minor children and, if those children are set to inherit money, consider whether you are happy for your ex to have control of those assets until they are 18. If not, you may want to appoint an alternative trustee and instruct that they retain the funds on behalf of the child instead of paying to their surviving parent.”
It is not unusual for divorce settlements to include a clause stating both partners must write a new will within, say, 30 days, leaving all assets to beneficiaries they have jointly decided on, usually their joint children.
Jenny says, “Compelling divorcing partners to make new wills through their settlement agreement is a sensible idea, giving some comfort to those concerned that their children be provided for and that this will not be jeopardised by any second marriage.
“It’s important to recognise, however, that if they wish, either partner can revoke their will at any time and it is not possible to tie their hands. Mutual wills, where there is an attempt to make wills that do bind the other party, are fraught with difficulty and are not advisable given they can result in complex legal disputes and problems. They are rarely advisable for divorcing couples.
“For those divorcees who are happy to let their ex live in a property for their lifetime but don’t want it to pass to their ex’s beneficiaries in the event of their death, a better option is to give them a life interest, allowing them to live there but ensuring the house passes to the beneficiaries of your choice upon their death or them vacating the property.”
Does Divorce Mean My Will Is Automatically Revoked?
No, divorce does not automatically revoke a will. A will remains in effect until it is properly revoked or until the person who made the will (the “testator”) dies. In most states, a will can be revoked by the testator at any time, as long as the testator has the mental capacity to understand the nature of the document and the act of revocation. There are several ways to revoke a will, including destroying the original document, executing a new will that revokes all prior wills, or making a written document that specifically revokes the will.
If you are going through a divorce and have concerns about your will, it is a good idea to consult with a divorce lawyer to understand your options and to ensure that your estate plan reflects your current wishes.
Why should I make a new will after getting divorced?
There are several reasons why you may want to consider making a new will after a divorce:
- To reflect your current wishes: If you have a will that was made before your divorce, it may contain provisions that are no longer relevant or that you no longer want to take effect. For example, you may have left gifts to your former spouse or appointed them as a personal representative. Making a new will allows you to update your estate plan to reflect your current wishes.
- To provide for your children: If you have children from your marriage, your will may contain provisions related to their care and support. If your divorce changes your relationship with your children, you may want to update your will to reflect your new circumstances.
- To name new beneficiaries: After a divorce, you may have new people in your life whom you wish to include in your estate plan. A new will allows you to name these individuals as beneficiaries or appoint them as personal representatives.
- To make changes to your estate plan: A divorce can also be a good time to review your overall estate plan and make any necessary changes. This could include updating your financial and medical powers of attorney or revoking or creating trusts.
It is important to keep in mind that making a new will does not automatically revoke your prior will. If you want to revoke your prior will, you will need to follow the legal requirements for revocation, which may include executing a written document that specifically revokes the will. It is a good idea to consult with an attorney to ensure that your estate plan is properly updated after a divorce.
What happens if I don’t make a new will after getting divorced?
If you don’t make a new will after getting divorced, your previous will remains in effect until it is properly revoked or until you die. This means that the provisions of your previous will, including any gifts or appointments of personal representatives, will still take effect.
If you have a will that was made before your divorce, it may contain provisions that are no longer relevant or that you no longer want to take effect. For example, you may have left gifts to your former spouse or appointed them as a personal representative. If you don’t make a new will, these provisions will still take effect, even if you don’t want them to.
Can my ex claim my inheritance after getting divorced?
In the United Kingdom, inheritance is generally considered separate property and is not subject to division in a divorce. This means that your ex-spouse would not be entitled to any part of your inheritance, regardless of whether you received it before or after the divorce.
However, it is important to note that the distribution of your estate upon your death is governed by the terms of your will or, if you do not have a will, by the laws of intestacy. If you have not made a will, your ex-spouse may be entitled to a share of your estate under the laws of intestacy, depending on your circumstances and the laws of the state where you live.
It is also worth noting that the terms of your divorce settlement may affect your ex-spouse’s ability to claim your inheritance. If you and your ex-spouse reached an agreement on the division of property, including inheritance, as part of your divorce, that agreement may determine whether and to what extent your ex-spouse is entitled to a share of your inheritance.
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